In The News

HOS is a gift (or not) that keeps on giving

As we sit at our PC and compose the Eye on Trucking column for this issue, we briefly — and only very, very, very briefly — recall the days when we used to compose articles on manual typewriters, ripping out pages from the old Underwood or Royal, wadding them up and starting all over time after time.

Now all we do is hit the delete or backspace key and keep right on writing.

We also have the luxury of storing electronic folders on our PCs, saving a lot of file space.

Somewhere on our machine there is a folder called HOS 2003, one called HOS 2005 and now we’ve added HOS 2008.

While we were at it, we added a couple of more years of HOS rules, but of course we didn’t know what years to attached, so we just left the year blank.

That’s because we’re certain we’ve not heard the end of the ongoing Hours of Service saga, even though we believe the rule in place is a good one, except perhaps in one area — the so-called 8-2 sleeper berth rule.

As we recall, HOS 2003 said that drivers using a sleeper berth must take 10 hours off duty, but may split sleeper-berth time into two periods provided neither is less than two hours.

And as we all recall, “safety advocacy” groups took HOS 2003 to court, primarily over the new 11-hour driving rule and the 34-hour restart provision.

In its ruling that overturned portions of HOS 2003, an appeals court said the Federal Motor Carrier Safety Administration (FMCSA) failed to consider a variety of driver health issues.

FMCSA, the court said, had not demonstrated well enough that the fatigue-reduction measures would have a beneficial impact on driver health.

So in HOS 2005, FMCSA addressed the court’s concern with a new rule that said drivers using the sleeper berth provision must take at least eight consecutive hours in the sleeper berth, plus two consecutive hours either in the sleeper berth, off duty, or any combination of the two.

The decision was based primarily on sleep science.

But the advocacy groups still didn’t like the rule, again primarily because of the 11-hour driving time and 34-hour restart provision and yet another suit got portions of HOS 2005 overturned.

This time, court said the FMCSA had violated the Administrative Procedure Act (APA) because it failed to give interested parties an opportunity to comment on the methodology of the crash-risk model that the agency used to justify an increase in the maximum number of daily and weekly hours that truck drivers may drive and work. The court also found that the agency failed to provide an explanation for critical elements of that methodology.

So, the FMCSA’s HOS 2008 was the same as HOS 2005, but the agency took care to make sure everyone had a chance to comment within the scope of the APA.

While Public Citizen and other groups got most of the attention, we heard from a lot of drivers who didn’t like the 8-2 rule because it took away flexibility to deal with congestion, delayed loadings and unloading and other unforeseen circumstances.

Perhaps some were hoping the FMCSA would address the 8-2 provision in HOS 2008.

But the agency dealt only with the issues the court cited in overturning HOS 2005.

“We’ve had a lot of discussions about the whole issue of the sleeper berth and breaking up that period,” FMCA administration John Hill said in announcing HOS 2008 last month. “But because the court specifically addressed two provisions, the 11-hour driving and the 34-hour restart, we confined our regulatory response to those issues that the court raised. We thought it was important to stay true to that before we actually get into these other issues."

"Now people outside Washington who don’t deal regularly with this regulatory process, they may think ‘well why don’t you fix it all while you’re in there?’ But when you do that, you begin to complicate the process and it makes it difficult to defend, so while we would like to fix everything for every single driver, it’s just very difficult to do in one sweeping regulation. So we did take that into consideration.”

The first week of December, the poll on thetrucker.com asked drivers to respond whether they were happy with HOS 2008.

It was about half and half, with more saying no than yes.

Again, the negative comments pointed to the 8-2 rule and the lack of flexibility.

We still also hear from veteran drivers that they would like to use their experience and knowledge of how sleep cycle functions to be able to pull off the road and take a two-hour nap while “off duty.”

We realize that this could extend the workday beyond 14 hours.

No one in the industry knows how the new administration will view HOS 2008, but it will be interesting to see if the sleeper berth situation is revisited at some point.

We’re not taking sides on this issue, just reporting what we hear.

Lyndon Finney of The Trucker staff can be reached for comment at [email protected].